US v. Albert Hardy, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00010-MR-1. Copies to all parties and the district court. [999750740].. [15-6966]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6966

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALBERT EUGENE HARDY, JR.,
Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:07-cr-00010-MR-1)

Argued:

October 7, 2015

Before TRAXLER,
Judges.

Chief

Decided:

Judge,

and

KING

and

February 8, 2016

THACKER,

Vacated and remanded by unpublished per curiam opinion.
Judge Traxler wrote a dissenting opinion.

Circuit

Chief

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
ON BRIEF: Ross Hall Richardson,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC.,
Charlotte,
North
Carolina,
for
Appellant.
Jill
Westmoreland Rose, Acting United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Albert Eugene Hardy, Jr., appeals from the June 2015 order
entered in the Western District of North Carolina, granting him
a sentence reduction from 168 to 140 months under 18 U.S.C.
§ 3582(c)(2).

Hardy contends that the district court erred in

failing to recognize that it could have reduced his sentence to
as low as 98 months.

The government counters that the court

simply declined to award Hardy a larger reduction.

As explained

below, the record does not reveal that the court appreciated the
scope

of

its

authority,

committed legal error.

and

it

also

shows

that

the

court

We therefore vacate and remand.

I.
On

May

3,

2007,

Hardy

pleaded

guilty

to

conspiracy

to

possess with intent to distribute cocaine base, in contravention
of 21 U.S.C. § 846.

Prior to the guilty plea, the United States

Attorney filed a notice, pursuant to 21 U.S.C. § 851, advising
that the government would utilize Hardy’s prior North Carolina
drug conviction to seek a 240-month mandatory minimum sentence,
pursuant to 21 U.S.C. § 841(b)(1)(A).
The probation officer thereafter prepared the presentence
report and recommended that Hardy be sentenced to 240 months.
The PSR reached its mandatory minimum recommendation by starting
with a base offense level of 32, predicated on a drug weight of
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approximately 370 grams of cocaine base.

The offense level was

then adjusted two levels upward for reckless endangerment, less
three levels for acceptance of responsibility, resulting in a
final offense level of 31.
Hardy’s

criminal

history

Based on the final offense level and
category

of

V,

the

Sentencing

Guidelines advised a sentencing range of 168 to 210 months.

The

§ 851 notice, however, triggered the mandatory minimum, making
his Guidelines sentence 240 months.
a

statutorily

maximum

of

required

the

minimum

applicable

See USSG § 5G1.1(b) (“Where

sentence

guideline

is

greater

range,

the

than

the

statutorily

required minimum sentence shall be the guideline sentence.”). 1
Prior

to

the

January

30,

2008

sentencing

hearing,

the

government filed a motion for a downward departure, pursuant to
18 U.S.C. § 3553(e), recognizing therein that Hardy had provided
substantial assistance to the authorities. 2

The district court

1

The PSR relied on the 2007 edition of the Sentencing
Guidelines.
We otherwise refer to the 2014 edition, the
Guidelines edition applicable to Hardy’s 18 U.S.C. § 3582(c)(2)
motion.
2

Pursuant to § 3553(e), a prosecutor’s downward-departure
motion rewards a cooperating defendant by conferring upon the
sentencing court “the authority to impose a sentence below a
level established by statute as a minimum sentence so as to
reflect
a
defendant’s
substantial
assistance
in
the
investigation or prosecution of another person who has committed
an offense.”
The sentence must then be imposed “in accordance
with the guidelines and policy statements issued by the
Sentencing Commission.” Id.; see USSG § 5K1.1.

4

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granted

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the

government’s

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substantial-assistance

imposed a sentence of 168 months.

motion

and

The sentence thus fell at the

low end of the otherwise applicable Guidelines range of 168 to
210

months,

and

it

equaled

70%

of

the

240-month

mandatory

minimum.
Seven
motion

in

seeking

years
the

a

later,

district

sentence

Guidelines.

on

In

April

court

under

reduction

response,

23,

2015,
18

under

the

Hardy

U.S.C.

Amendment

probation

filed

his

§ 3582(c)(2),
750

officer

to

the

filed

a

memorandum with the court on April 27, 2015, advising that Hardy
was ineligible for relief under Amendment 750. 3
officer

further

advised

the

court,

however,

The probation
that

Hardy

eligible for a sentence reduction under Amendment 782. 4

was
More

specifically, the probation officer stated that Hardy’s original
sentence
statutory

of

168

months

minimum.

The

was

equal

probation

to

70%

officer

of

the

then

Hardy’s revised Guidelines range as 140 to 175 months.

240-month
calculated
Finally,

3

Amendment 750 (effective November 1, 2011) altered the
weight ranges for cocaine base offenses in the Guidelines, but
not enough to impact Hardy’s base offense level.
On appeal,
Hardy does not challenge the court’s denial of relief under
Amendment 750.
4

Like Amendment 750, Amendment 782 (effective November 1,
2014) changed the applicable weight ranges for cocaine base
offenses in the Guidelines.
Unlike Amendment 750, however,
Amendment 782 had the effect of lowering Hardy’s base offense
level.

5

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pursuant

to

probation
months.

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the

applicable

officer

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Guidelines

recommended

a

policy

comparable

See USSG § 1B1.10(b)(2)(B).

statement,

reduction

to

the
98

The recommended 98 months

was 70% of 140 months, or 70% of the low end of Hardy’s revised
Guidelines range.
On

June

1,

See id. § 1B1.10(c) cmt. n.4(B).
2015,

the

government

agreed

that

Hardy

was

eligible for a sentence reduction under Amendment 782, and also
acknowledged that the district court could lower his sentence to
the 98 months recommended by the probation officer.

Moreover,

the government expressly consented to such a reduction.

Hardy

responded the very next day, requesting that the court award him
the unopposed sentence reduction to 98 months.
By its one-page order (AO Form 247) of June 17, 2015, the
district

court

granted

Hardy’s

§ 3582(c)(2)

motion

reducing his sentence to 140, rather than 98 months.

in

part,

See United

States v. Hardy, No. 1:07-cr-00010 (W.D.N.C. June 17, 2015), ECF
No. 72 (the “Order”).

In so ruling, the court explained that

Hardy’s “Original Guideline Range” was 240 months, and that his
“Amended Guideline Range” was also 240 months.

From the list of

checkbox options contained in the Order, the court selected the
option

specifying

Amendment 782.

that

the

reduced

sentence

was

based

on

The court left blank an option that reads, “The

reduced sentence is within the amended guideline range.”

It

also did not mark another option that reads, “The previous term
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imprisonment

imposed

was

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less

than

the

guideline

range

applicable to the defendant at the time of sentencing and the
reduced sentence is comparably less than the amended guideline
range.”

Finally, the court checked the box designated “Other,”

and explained:
Defendant’s [original] sentence was enhanced pursuant
to a § 851 notice.
His cooperation was recognized
b[y] allowing him a reduction to a sentence at the low
end of the Guideline Range without consideration of
the § 851 notice. Defendant’s reduced sentence herein
is likewise at the low end of the revised Guideline
Range after Amendment 782, without consideration of
the § 851 notice.
Hardy has filed a timely notice of appeal of the district
court’s sentence reduction decision.

We possess jurisdiction

pursuant to 28 U.S.C. § 1291.

II.
Absent
district

an

abuse

court’s

of

discretion,

sentence

reduction

we

will

decision

not
under

disturb
18

a

U.S.C.

§ 3582(c)(2).

See United States v. Mann, 709 F.3d 301, 304 (4th

Cir. 2013).

A district court abuses its discretion when it

commits an error of law.
754,

757

district

(4th

Cir.

court’s

See United States v. Rybicki, 96 F.3d

1996).

An

misapprehension

error
of

of

“the

law

may

scope

of

include
its

a

legal

authority under § 3582(c)(2),” an issue that we review de novo.
See Mann, 709 F.3d at 304.

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III.
Hardy contends that the district court erred in failing to
recognize its authority under the Sentencing Commission’s policy
statement and in “calculating the extent of a ‘comparably less’
reduction”

below

Appellant 8.
failed

to

sentence

his

amended

range.

See

Br.

of

Put succinctly, Hardy maintains that the court

appreciate

to

Guidelines

98

that

months

Guidelines range).

it

(70%

was

of

authorized

the

low

end

to
of

reduce
his

his

amended

The United States Attorney agrees that the

court was authorized to reduce Hardy’s sentence to 98 months.
The prosecution contends, however, that the court was aware of
that authority and instead “explicitly declined to impose the
shortest prison sentence it could.”

See Br. of Appellee 14.

Hardy’s sentence reduction from 168 to 140 months, according to
the

government,

was

neither

erroneous

nor

an

abuse

of

discretion.
The Supreme Court’s decision in Dillon v. United States
explained the “two-step approach” that a district court must
undertake when resolving a § 3582(c)(2) motion.
817,

827

(2010).

First,

“the

court

See 560 U.S.

[must]

follow

the

[Sentencing] Commission’s instructions” in the policy statement
spelled

out

prisoner’s
extent

of

in

Guidelines

eligibility
the

for

reduction

section
a

1B1.10

sentence

authorized.”
8

“to

determine

modification
Id.

(emphasis

and

the
the

added).

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Second,

the

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court

must

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“consider

any

applicable

[18

U.S.C.]

§ 3553(a) factors and determine whether, in its discretion, the
reduction authorized by reference to the policies relevant at
step one is warranted in whole or in part under the particular
circumstances of the case.”
Consistent
determined

with

that

extent

of

the

Commission’s

Dillon,

Hardy

under Amendment 782.

Id.

was

district

eligible

for

a

court

initially

sentence

reduction

The court failed, however, to specify the

permissible

policy

1B1.10(b)(2)(B).

the

reduction

statement

authorized

in

by

Guidelines

the

section

That policy statement authorizes a “[sentence]

reduction comparably less than the amended guideline range” when
the defendant was originally sentenced below a mandatory minimum
based on his substantial assistance to the authorities.
(emphasis added).

See id.

Because Hardy was originally sentenced to 168

months (70% of 240 months), a “comparably less” sentence under
Amendment 782 would be 98 months, or 70% of the low end of his
amended

Guidelines

(providing

for

Guidelines

range.

range).

Dillon’s

first

percentage
Put

step.

See

id.

reduction
simply,

The

§ 1B1.10(c)
from

the

court’s

low

cmt.

end

court

did

failure

to

n.4(B)

of

amended

not

complete

identify

the

permissible reduction to 98 months strongly suggests that it did
not appreciate the scope of its authority.
Smalls,

720

F.3d

193,

196

(4th
9

Cir.

See United States v.

2013)

(observing

that

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“contrary indication[s]” may “rebut the . . . presumption that
the district court considered all relevant factors in ruling on
[a] § 3582(c)(2) motion”).
In
court

pressing
fully

the

contrary

understood

the

—

assertion
scope

of

its

that

the

district

authority

government emphasizes two aspects of the form Order.

—

the

First, it

points to the court’s explanation — accompanying the “Other” box
— that Hardy’s reduced sentence was “likewise at the low end of
the revised Guideline Range after Amendment 782.”
government

contends

that

the

court

must

have

Second, the

recognized

its

authority to impose a lesser sentence because it failed to check
the

box

indicating

that

it

was

granting

a

“comparably

less”

reduction.
There are other aspects of the Order, however, that serve
to undermine the government’s contention.

Most importantly, the

Order

states

contains

“Original
both

an

error

Guideline

“240

months”

of

Range”
(the

law:

and

it

“Amended

mandatory

that

Guideline

statutory

Hardy’s

Range”

minimum).

are
That

statement runs contrary to the Guidelines’ explicit directive
that “the amended guideline range shall be determined without
regard

to”

the

240-month

mandatory

minimum.

See

USSG

§ 1B1.10(c); see also United States v. Williams, No. 15-7114, __
F.3d __, slip op. at 23 (4th Cir. Dec. 14, 2015) (“Although
Guidelines section 5G1.1(b) would otherwise turn the 240-month
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mandatory minimum into Williams’s revised ‘guideline sentence,’
the revisions made to Guidelines section 1B1.10 by Amendment 780
bar the sentencing court from calculating his amended range in
that manner.”).

In this case, Hardy’s amended Guidelines range

was not 240 months, as the district court stated in the Order,
but

was

140

to

175

months,

as

determined

circumstances,

we

are

not

scope

of

by

the

probation

officer. 5
In
district

these
court

§ 3582(c)(2).

appreciated

the

persuaded
its

that

authority

the

under

Furthermore, the court committed legal error in

ruling on Hardy’s sentence reduction motion.

We are therefore

constrained to vacate the Order and remand.

IV.
Pursuant
remand

for

to
such

the

foregoing,

other

and

we

further

vacate

the

proceedings

judgment
as

may

and
be

appropriate.
VACATED AND REMANDED

5

Prior to the issuance of our Williams decision a few weeks
ago, there would have been a viable contention that the 240month mandatory minimum was the correct amended Guidelines range
for a prisoner in Hardy’s position.
In Williams, however, we
squarely rejected that proposition.

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TRAXLER, Chief Judge, dissenting:
When the Government and the defendant make clear to the
judge that they agree as to the sentencing options available to
the

judge

and

when

the

judge

chooses

a

sentence

that

is

unquestionably within this range of lawful options, I believe we
can presume the judge understood what the lawyers said and I do
not believe we can fault the sentencing judge for not explaining
why he rejected the other choices presented to him.
There is nothing in the record to rebut the presumption
that

the

district

court

fully

understood

the

scope

of

its

sentencing authority when it ruled on Hardy’s motion under 18
U.S.C. § 3582(c)(2).

The parties’ written submissions, as well

as the probation officer’s report, advised the court that it had
the authority to reduce Hardy’s sentence to 98 months or less.
The district court’s order reflected that the court understood
the extent to which it was authorized to reduce Hardy’s sentence
but decided that the circumstances in this case merited less
than

the

maximum

reduction.

The

district

court

acted

well

within its discretion to reduce Hardy’s sentence to 140 months
rather than 98 months.
Where

a

Accordingly, I respectfully dissent.

defendant

“has

been

sentenced

to

a

term

of

imprisonment based on a sentencing range that has subsequently
been lowered by the Sentencing Commission,” a district court
“may

reduce

the

term

of

imprisonment”
12

after

considering

the

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§ 3553(a) factors and the applicable policy statements from the
Sentencing Commission.
added).

See 18 U.S.C. § 3582(c)(2) (emphasis

“[T]he decision about whether to reduce a sentence is

discretionary on the part of the district court.

The court is

not required to reduce a defendant’s sentence, even where the
current sentence is above the amended guidelines range.”

United

States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010).

This

court therefore reviews a district court’s decision to grant or
deny

a

sentence

reduction

under

§

3582(c)(2)

for

abuse

of

discretion.

See United States v. Smalls, 720 F.3d 193, 195 (4th

Cir. 2013).

A court’s failure to understand the scope of its

authority to reduce a sentence under § 3582(c)(2) amounts to an
abuse of discretion.

See United States v. Bernard, 708 F.3d

583, 597 (4th Cir. 2013).
Although

the

district

court

granted

Hardy’s

motion

and

reduced his sentence from 168 months to 140 months, Hardy argues
that

the

district

court

failed

to

understand

that

reduce his sentence even further to 98 months.

it

could

To properly

consider Hardy’s position, the correct place to start is with
the presumption that the district judge correctly understood his
sentencing
factors

authority

and

§ 3582(c)(2).
contrary

and

applicable

properly
policy

considered

statements

the
as

See Smalls, 720 F.3d at 195-96.

indication,

we

presume
13

a

district

court

§

3553(c)

required

by

“[A]bsent a
deciding

a

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§ 3582(c)(2)

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motion

has

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considered

the

18

U.S.C.

factors and other pertinent matters before it.”
quotation marks omitted).

§

3553(a)

Id. (internal

There is nothing in the record that,

in my view, overcomes the presumption that the district court
properly understood and considered the extent of his authority
to reduce Hardy’s sentence.
Section 1B1.10(b)(1) of the Sentencing Guidelines directs
the

district

“determine

court

the

when

amended

considering
guideline

a

range

sentence
that

reduction

would

have

to

been

applicable to the defendant if the amendment(s) . . . had been
in

effect

at

the

time

the

defendant

was

sentenced.”

The

Sentencing Guidelines generally prohibit a court from reducing
the defendant’s term of imprisonment under § 3582(c)(2) “to a
term that is less than the minimum of the amended guideline
range.”
original

U.S.S.G. § 1B1.10(b)(2)(A).
sentence

substantial

was

assistance

below

the

departure

If, however, a defendant’s

guideline
under

§

range

based

3553(e),

on

then

a
“a

reduction comparably less than the amended guideline range . . .
may be appropriate.”

Id. at § 1B1.10(b)(2)(B) (emphasis added).

In this case, Hardy’s original sentencing range would have
been 168-210 months but for the fact that he was subject to a
240-month mandatory minimum sentence.
the

mandatory

months.

minimum,

Hardy’s

Nevertheless, in light of

guideline

sentence

was

240

See U.S.S.G. § 5G1.1(b) (“Where a statutorily required
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minimum sentence is greater than the maximum of the applicable
guideline range, the statutorily required minimum sentence shall
be the guideline sentence.”).
applies in this case.
guideline

range

Thus, U.S.S.G. § 1B1.10(b)(2)(B)

Hardy’s original sentence was below the

“pursuant

to

a

government

motion

to

reflect

[Hardy’s] substantial assistance to authorities,” meaning that
the district court could, but was not required to, grant under
§ 3582(c)(2)

“a

reduction

comparably

less

than

the

amended

guideline range” of 140-175 months.
U.S.S.G. § 1B1.10(c) makes clear that in a case such as
this one, where the defendant is subject to a statutory minimum,
the amended range is determined “without regard to the operation
of § 5G1.1.”

U.S.S.G. § 1B1.10(c).

That is, the court must

disregard the fact that the defendant was subject to a mandatory
minimum when determining “the amended guideline range that would
have been applicable to the defendant if the amendment(s) . . .
had been in effect at the time the defendant was sentenced.”
U.S.S.G. § 1B1.10(b)(1).
The parties agree that in reducing Hardy’s sentence under
§ 3582(c)(2), the district court, had it so desired, could have
gone as low as 98 months because the original 168-month sentence
was 30% below the guideline range of 240 months—the guideline
range being equal to the mandatory minimum under § 5G1.1.

A

“comparable” 30% reduction from the bottom of the amended range
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of 140 months would have resulted in a sentence of 98 months,
assuming

the

district

court

reduction to be appropriate.

in

its

discretion

found

however,

granted

a

This point was the subject of the

memoranda submitted to the court by the parties.
court,

such

Hardy

a

downward

The district

departure

under

§ 3553(e) and sentenced him to 168 months, the bottom of the
otherwise applicable sentencing range.
There is nothing in the district court’s ruling to overcome
the presumption that the court understood how to properly apply
U.S.S.G. § 1B1.10(b) & (c), that the amended guideline range was
140-175 months, and that it could reduce Hardy’s sentence below
the amended range to 98 months.

The court was fully briefed by

the parties and the probation officer regarding the option of
reducing Hardy’s sentence to 98 months.

The district court’s

order reflected its clear understanding of the amended guideline
range as determined by application of § 1B1.10(c):

“Defendant’s

reduced sentence [of 140 months] . . . is likewise at the low
end of the revised Guideline Range after Amendment 782, without
consideration of the § 851 notice.”

J.A. 89.

And, since the

district court clearly understood that the 140-month sentence
that it was imposing was at the bottom of the amended range, the
court understood it was not imposing a “reduced sentence . . .
comparably less than the amended guideline range” because it did
not select that checkbox option.
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The fact that the one-page form order does not explicitly
state

that

“the

court

is

aware

that

a

98-month

sentence

is

permissible” does not persuade me that the district court was
ignorant of this point on which it had just been briefed.

“[I]n

the absence of evidence a court neglected to consider relevant
factors, the court does not err in failing to provide a full
explanation for its § 3582(c)(2) decision.”

Smalls, 720 F.3d at

196.

the

The

district

court

chose

amended range, but not below it.

to

go

to

bottom

of

the

There is nothing to suggest

that this was not a conscious and intentional choice or that we
ought to abandon the presumption that the district court was
aware of and considered all of the sentencing options available
to it.

17